At New Health Office, ‘Civil Rights’ Means Doctors’ Right to Say No to Patients

The HHS civil rights division refocuses on the rights of health care providers who have moral objections to treatments such as abortion or sterilization, alarming critics.

03.05.18 5:00 AM ET

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By Emmarie Huetteman

The Trump administration is embarking on a sweeping effort to redefine civil rights in health care, with critics accusing the Department of Health and Human Services of sidestepping the rights of patients to soothe a far smaller constituency: conservative nurses, hospitals and other caregivers.

The department’s Office for Civil Rights (OCR) has been greatly strengthening and expanding protections for health care providers who have religious- or conscience-based objections to procedures such as abortion. By way of explanation, officials cite 36 complaints OCR received from, or on behalf of, those working in the health care system from President Donald Trump’s election through early January of alleged affronts to religious beliefs and moral convictions—up from 10 such complaints it had fielded since 2008.

What officials did not mention is that those 36 complaints pale against the more than 30,000 total complaints that OCR received during 2017, according to the agency’s latest budget request; most involved alleged breaches of privacy or discrimination against patients.

“Times are changing,” Roger Severino, OCR’s director, said in a speech in January. “And we are institutionalizing a change in the culture of government, beginning with HHS, to never forget that religious freedom is a primary freedom; that it is a civil right; that it deserves complete enforcement and respect.”

During the Obama administration, OCR operated under a two-pronged, patient-centric mission: to protect civil rights and health information privacy. The office focused on a part of the Affordable Care Act known as Section 1557, which, for the first time, barred providers who receive federal funding from discriminating on the basis of gender identity.

But the new, wide-ranging proposal to strengthen conscience protections at OCR involves the creation of a division, hiring of staff and re-evaluation of which civil rights it will protect.

Overseen by Severino, who has deep ties to the religious right, the makeover appears radical, one that critics worry will jeopardize the care of pregnant women and transgender individuals, as well as others who could be denied certain procedures. Officials spent months quietly rethinking policies and plans for enforcement, Severino has said, preparing to remake the office as a guardian of objections to abortion, sterilization and physician-assisted death, for example.

“Administrations are able to come in and put their own stamp and agenda on how they see policy. And that is politics. That is politics as usual,” said Mary Alice Carter, executive director of a new watchdog group called Equity Forward. “But the core issue here is we have individuals coming in who fundamentally don’t believe in the very mission they’re serving.”

“They are coming in with the agenda of burning it down,” she said.

Trump’s selection of Severino—a former Justice Department lawyer who most recently researched religious issues at the conservative Heritage Foundation—signaled the changes in store. In 2016, he co-authored a paper that argued OCR’s interpretation of Section 1557 as barring discrimination based on gender identity threatened health care providers who “as a matter of faith, moral conviction, or professional medical judgment, believe that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases.”

In an interview, Severino said the goal is to achieve “parity” in civil rights, enforcing existing laws passed by Republicans and Democrats alike to ensure those with moral objections are not excluded from the health care field.

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In January, Severino unveiled the agency’s Conscience and Religious Freedom Division, which will have equal standing with OCR’s existing Civil Rights and Health Information Privacy division, right down to getting its own staff and a director. Previously, conscience complaints from health care providers were reviewed alongside other discrimination complaints by the Civil Rights Division.

Last week, an HHS spokesperson said the office had received at least 40 more conscience-related complaints from providers in the weeks since the division opened, part of what the spokesperson characterized as “a clear surge” in such complaints under the Trump administration.

Under the proposed rule outlining HHS’ plans, the division would collect and investigate complaints filed by health care professionals and entities, in addition to reviewing the policies of HHS and its partners to make sure they comply with a slew of conscience-protection laws. If any recipient of federal funding is found to have violated the law, HHS “would consider all legal options.” That could include cutting off federal funds, taking back previously allocated funds or even referring the culprit to federal law enforcement officials.

That means a hospital that forces a nurse to participate in a vasectomy against her religious objections to sterilization, for instance, could risk having its federal funding revoked. But beyond objections to abortion and sterilization in particular—which have some explicit protections under federal law—it is murky which complaints HHS would deem valid. For example, it is unclear whether conscience-protection laws would shield a primary care doctor who refused to prescribe pre-exposure prophylaxis, or PrEP, which drastically lowers the risk of contracting HIV and is often used by gay men.

Severino rejected the notion that his office is elevating the concerns of a small group of conservative, Christian health care providers above others. In an interview, he argued HHS is early in the normal regulatory process and will work out the practicalities of how to balance the rights of providers with the rights of those they have sworn to treat as it reviews comments from the public and finalizes its proposal.

“We’re about increasing access for everybody,” Severino said. “And part of increasing access for all is making sure we have a diverse set of providers for people.”

Hinting at the scope of the changes in store, officials filed notices in January rewriting OCR’s mission statement to emphasize conscience and religious freedom and empowering Severino to implement related laws.

Jocelyn Samuels, a former Justice Department civil rights lawyer who led OCR under Obama, said the office’s latest efforts suggest officials are setting the stage for an unprecedented expansion in the ability of providers to deny care.

The recent changes, she said, “presage a commitment to invest more resources in protecting people’s rights to deny care than promoting expansions of access to care.”

Already, OCR has reversed decisions of its Obama-era predecessor. In 2016, for example, OCR concluded that a California law requiring that health insurance plans include coverage for elective abortions did not violate the Weldon Amendment—a measure barring federal funding to those that discriminate against professionals or institutions for not providing, or otherwise assisting patients in obtaining, abortions.

In a call with members of the conservative Federalist Society in February, Severino said OCR no longer stood by that 2016 decision.

OCR has also said it will not enforce Section 1557’s protections based on gender identity—the same protections Severino railed against in his 2016 paper—as well as its protections based on “termination of pregnancy.” Officials have attributed that decision to an injunction by a federal judge.

Asked whether the conscience-protection efforts would shield those who object to hormone therapy or other treatments for transgender patients, Severino told Federalist Society members the office was abiding by the judge’s injunction “to the fullest extent.” He added that he had never heard of anyone citing conscience-protection laws in such a case.

In the waning days of George W. Bush’s presidency in 2008, HHS introduced a rule that would prohibit discrimination against those who refuse to perform abortion or other procedures on religious or moral grounds, as well as established a way to file related complaints to OCR. The Obama administration replaced it with a more narrowly tailored rule.

However, the big-picture efforts by the Trump administration have gone further than that Bush administration rule—a point underscored by a note in the proposed rule that explicitly grants OCR “full enforcement authority over a significantly larger universe of Federal statutes” protecting religious- and conscience-based objections than the 2008 rule.

Some have greeted the change with open arms, praising HHS for abandoning what Severino called the “outright hostility” of the Obama years.

Said Everett Piper, the president of Oklahoma Wesleyan University, an evangelical Christian school that sued to be exempted from the Affordable Care Act’s requirement that employer insurance plans cover contraceptives: “I just want to say how good it is to be here thanking Health and Human Services and the Office of Civil Rights rather than suing them.”

Kaiser Health News (KHN) is a nonprofit news service covering health issues. It is an editorially independent program of the Kaiser Family Foundation that is not affiliated with Kaiser Permanente.